SC Administrative Law Court Decisions

This matter is before me pursuant to Respondents' Motion to Dismiss dated February 5, 1996. Respondents' move to dismiss this case on the basis that the Department of Health and Environmental Control (DHEC) has the authority to withdraw an erroneously issued public notice, and that this matter is not ripe for a decision, or in the alternative, has become moot. Petitioner opposes the motion on two grounds. First, Petitioner argues that once a Final NPDES Permit Determination is made, DHEC no longer has the authority to modify or withdraw the decision until the matter is adjudicated. Second, Petitioner argues that even if DHEC has the authority to withdraw the Notice of Final NPDES Determination after a petition is filed, it did not follow the appropriate procedures in doing so. Both Petitioner and Respondents presented memoranda of law supporting their respective positions on the motion. The Court determined that oral argument was not necessary to aid in the disposition of the issues raised. After considering the arguments in favor of and in opposition to dismissal, the motion is granted.

The relevant facts in this matter are as follows: Around 1984, the Department of Natural Resources (DNR) began operation of Waddell Mariculture RND (Waddell), a facility that produces warm water fish species or other warm water aquatic animals. In 1992, Waddell produced more than 100,000 pounds of aquatic animals. As a result, DHEC directed DNR to apply for a NPDES permit pursuant to S.C. Code Regs. 61-9, §122.24 (Supp. 1995). This provision requires certain warm water aquatic animal facilities that otherwise are not required to obtain NPDES permits, to apply for such permits. Subsequently, DNR submitted its application for an NPDES permit.

As part of the NPDES permitting process, draft permits were issued by DHEC to the DNR. On September 28, 1995 Mr. Byron Amick (Amick), the DHEC project engineer in charge of the Waddell file, forwarded to DNR's Paul Sandifer (Sandifer), a draft permit containing various monitoring requirements and limitations. On October 13, 1995, Amick notified Sandifer that DHEC was proceeding "...with a notice of final determination, but will not have the permit effective until May 1, 1996." Sandifer responded to Amick by letter dated October 23, 1995, wherein he advised that the terms and provisions of the draft permit were acceptable to Waddell. The letter was received by Amick on or about October 25, 1995.

On the same day, DHEC published a Notice of Final Permit Determination. The notice was consistent with the draft permit except that it contained an effective date of December 1, 1995 rather than May 1, 1996. The substitution of the December 1, 1995 date was an administrative error on the part of DHEC. Petitioner filed an "appeal" of the matter set forth in the erroneously filed public notice on November 9, 1995. A public notice withdrawing the previously issued public notice was published on November 28, 1995.

There appears to be a factual dispute regarding whether Amick withdrew the first public notice before or after learning of Petitioner's "appeal." Upon receiving Sandifer's letter on or about October 25, 1995, Amick realized that the public notice published on October 25, 1995 inaccurately set forth DHEC's decision in this matter, in that there had been no agency decision to issue the permit with that particular effective date. At this time, Amick decided to withhold issuance of the permit and took steps to do so. Amick claims that the withdrawal decision was made in late October or early November and that he was not aware of the appeal until he was informed of it by a DHEC attorney on or about November 14, 1995. Amick was then advised by counsel for DHEC to publish a public notice withdrawing the previously issued notice. Petitioner, while not asserting or implying that DHEC or DNR personnel are being untruthful, points out that no "official" action was taken to withdraw the first public notice until November 28, 1995. While a factual dispute on the date of the withdrawal may exist, the resolution of this dispute is not relevant to the legal rationale for the granting of Respondents' Motion to Dismiss.

DHEC HAS THE AUTHORITY TO WITHDRAW A PUBLIC NOTICE CONTAINING ERRONEOUS INFORMATION

DHEC, pursuant to S.C. Code Ann. §48-1-50(17) (Rev. 1987), is responsible for the administration of the Federal Pollution Control Act, and as a result, the National Pollutant Discharge Elimination System (NPDES) program, in South Carolina. As the state agency charged with this duty, DHEC is vested with the authority to correct administrative errors appearing in public notices pertaining to this program. See City of Columbia v. Board of Health and Environmental Control, 292 S.C. 199, 355 S.E.2d 536 (1987) ("...a regulatory body possesses not only those powers expressly conferred on it but also those which must be inferred or implied for it to effectively carry out the duties with it is charged"). Here, an error was discovered in the public notice that purported to make the Waddell NPDES permit effective on December 1, 1995. There is no doubt that the intent of DHEC and DNR was that the permit would be effective on May 1, 1996. Petitioner admitted in his brief that DHEC and DNR had a clear understanding the permit would not be effective until May 1, 1996. At that point, DHEC was well within its powers to amend the notice, to withdraw it, and reissue a corrected notice. Subsequent to discovering the error, DHEC choose to withdraw the previously issued public notice. This action was well within DHEC's discretion as the state's administrator of the NPDES program.

THIS CASE IS NOT RIPE FOR REVIEW

Under the procedures established pursuant to the Administrative Procedures Act, a contested case would arise in this context when a public notice of a proposed permit decision is issued and a member of the public then "appeals" or protests the proposed decision. Notices of proposed decisions are published to provide the public with an opportunity to make comments regarding, or file objections to, the proposal. In this case, DHEC issued a Notice of Final Permit Determination for DNR's Waddell facility and subsequently withdrew the public notice and DHEC's decision to issue the NPDES permit to DNR.

Despite Petitioner's appeal, DHEC's withdrawal of the erroneously issued public notice severed the right to a contested case that arose when the appeal was filed. Petitioner's appeal is not ripe for a review because there presently exists no permit decision from DHEC authorizing DNR's Waddell facility to produce warm water fish species or other warm water aquatic animals in quantity in excess of 100,000 pounds.

Petitioner argues that DHEC relinquishes the power to withdraw a proposed permit determination once an "appeal" of that proposed decision is filed with the agency. In doing so, Petitioner relies on the following language contained in the withdrawn Notice of Final Permit Determination issued on October 25, 1995:

The Permit will be effective on the date given above [December 1, 1995] provided that no appeal for an adjudicatory hearing is made. If an appeal is filed, all contested provisions of the Permit will be stayed pending final Department action. All uncontested provisions of the permit will become effective on the effective date of the permit.

The above language serves to postpone the implementation of certain portions of issued permits until contested case proceedings can be held to determine the propriety of implementing such provisions. This language does not prohibit DHEC from completely withdrawing a notice of permit determination that is later discovered to contain an administrative error.

Secondly, Petitioner argues that even if DHEC has the authority to withdraw the first public notice, it did not follow the appropriate procedures in doing so. In support of his argument, Petitioner cites S.C. Code Regs. 61-9, §124.5 (Supp. 1995), which provides for the modification, revocation or termination of permits. The key portion of this section relied on by Petitioner states: "[P]ermits may only be modified, revoked, and reissued, or terminated after notice...All requests shall be in writing and should contain facts or reasons supporting the request."

No permit was issued in this case. The public notice dated October 25, 1995 stated that a final permit determination had been made, but indicated that the effective date of the decision, and the permit, would be December 1, 1995. On November 28, 1995, several days prior to the proposed effective date of the permit, DHEC issued a second public notice that withdrawing the final permit determination. DHEC did not need to comply with the language of Regs. 61-9, §124.5 because the permit was never issued or in effect.

The process of issuing public notices of prospective permits serves a dual purpose. First and foremost, the notice period provides the public with the time, and an avenue by which to protest portions of a proposed decision that may be problematic. A second and less obvious purpose, is to give the issuing agency an opportunity to recognize and remedy mistakes in the notices by withdrawing proposed determinations containing administrative errors. If, and when, DHEC issues a subsequent Notice of Final NPDES Determination to the Waddell facility , Petitioner may then "appeal" that proposed decision of the same grounds raised in his initial Notice of Intent to Appeal. As long as Petitioner has the opportunity to be heard on a proposed decision to issue a permit to the Waddell facility, he is not prejudiced by DHEC's decision to withdraw the October 25, 1995 public notice.

For the foregoing reasons, Respondents' Motion to Dismiss is granted.

AND IT IS SO ORDERED.

______________________________

Alison Renee Lee

Administrative Law Judge

April____, 1996

Columbia, South Carolina.

¹As the state administrator of the Federal Pollution Control Act, DHEC is charged with investigation, prosecuting and imposing civil sanctions against persons who violate the standards irrespective whether permits are issued. See S.C. Code Ann. §§ 48-1-50-and 48-1-330 (Rev. 1987).